This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP780

Cir. Ct. No.2011TP26

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT III

In re the termination of parental rights to Bane P., a
person under the age of 18:

Nicole P.,

Petitioner-Respondent,

v.

Michael P.,

Respondent-Appellant.

APPEAL
from orders of the circuit court for Brown County:KENDALL
M. KELLEY, Judge.Affirmed.

¶1MANGERSON, J.[1] Michael
P. appeals an order terminating his parental rights to his son, Bane P., and an
order denying his request to withdraw his admission to grounds for
termination.Michael argues he is
entitled to withdraw his admission because it was not knowingly, voluntarily,
and intelligently entered.We disagree
and affirm.

BACKGROUND

¶2Nicole P. petitioned to terminate Michael’s parental rights
to Bane.As grounds for termination,
Nicole alleged that Michael abandoned Bane and that Michael failed to assume
parental responsibility.See Wis.
Stat. § 48.415(1), (6).Michael
contested the petition and a fact-finding hearing was scheduled. On the hearing date, Michael’s counsel advised
the court that Michael wanted to admit to the abandonment ground.[2]Counsel submitted a “waiver of jury trial
admission of grounds” form and advised the court he had reviewed the
abandonment jury instruction, Wis
JI—Children 314, with Michael.Counsel also advised the court that the dispositional hearing would be
contested.

¶3The court called Michael to the witness stand and invited the
parties to question him about his admission.Michael’s attorney questioned Michael about his age, his completion of
high school, and certain mental health medications Michael had consumed within
the last twenty-four hours. Michael
agreed that he filled out the plea form with counsel, that he initialed each
line, and that he understood the phrases and sentences used on the form.He also indicated he understood he was giving
up his right to a jury trial and his right to have Nicole convince the jurors
by clear and convincing evidence that he abandoned Bane.Michael believed Nicole would be able to show
that, although he knew where Bane was located, he failed to communicate with
Bane for a period of six months or more.

¶4Michael understood that, after this hearing, he would no
longer be able to contest the underlying facts.He agreed that the dispositional hearing would be before a judge without
a jury, that the purpose of the hearing would be “to decide if it’s in Bane’s
best interest that [Michael] would stay his father,” and that “after today, our
focus is going to shift from [him] to Bane.”

¶5On cross-examination, Michael testified he reviewed the
abandonment jury instruction with his attorney, his attorney discussed defenses
to the abandonment ground with him, and he was unable to establish any defense
to abandonment.The court asked Michael
if there was anything Michael did not understand, if he had any questions, and
if he wanted to add anything to his testimony.Michael responded negatively to each question.

¶6Nicole then requested that, although Michael admitted grounds
existed to terminate his parental rights, the court delay its finding that
Michael was an unfit parent until the beginning of the dispositional
hearing.Nicole explained that the
court’s unfitness finding would be unnecessary if Michael voluntarily agreed to
terminate his parental rights at the dispositional hearing.After discussing Nicole’s request with
Michael, Michael’s counsel advised the court that Michael agreed to delay the
finding of unfitness.

¶7The court then addressed Michael’s counsel, asking him if he
believed Michael’s admission was knowing and voluntary.Counsel responded affirmatively and advised
the court that he had three or four conversations with Michael about this
decision and believed Michael understood the implications. The court accepted Michael’s admission to the
abandonment ground, concluding it was knowing, voluntary, and intelligent.It withheld its unfitness finding until the dispositional
hearing.The court subsequently held a
three-day dispositional hearing, and, at the end of the hearing, terminated
Michael’s parental rights to Bane.

¶8Michael filed a postdisposition motion, arguing his admission
to the abandonment ground was not knowing, voluntary, or intelligent and, as a result,
he was entitled to withdraw his plea.Specifically,
Michael asserted the court’s colloquy was insufficient because it failed to
inform him that: (1) if the court accepted his admission it would
find him to be an unfit parent whose rights could be terminated following the
dispositional hearing; (2) the sole focus at the dispositional hearing would be
Bane’s best interest; and (3) if Nicole prevailed at the dispositional hearing,
all of Michael’s parental rights to Bane would be permanently extinguished.Michael contended he did not understand these
concepts when he entered his admission.

¶9The court held an evidentiary hearing.At the hearing, Nicole called Michael as a witness
and questioned him about the “waiver of jury trial admission of grounds” form
he completed.Specifically, Nicole
directed Michael to four initialed statements on the form:

10. If the Court accepts my stipulation I
realize I will be found to be “an unfit parent” and that finding is the same as
if I had been found unfit after a trial.… [Michael’s initials].

11. I understand that a “Disposition
Hearing” will take place in Court.At
that hearing, a Judge will listen to testimony and decide if it is in my
child’s best interest to terminate my parental rights.… [Michael’s initials].

12. I understand that the Judge at the
disposition hearing may or may not terminate my parental rights.… [Michael’s
initials].

Michael agreed that his
initials after each statement indicated he understood the statement.He testified that, although he thought he
understood those statements when he initialed them, he has since realized that
he did not understand them.On
cross-examination, Michael testified that he did not know that his parental
rights could be terminated only if the court first found him “unfit,” that the
dispositional hearing would be solely focused on Bane and that, if he lost at
the dispositional hearing, his parental rights to Bane would be permanently extinguished.Michael testified he only entered an
admission to the abandonment ground because he believed Nicole would have been
able to prove that ground at trial.

¶10Nicole called Michael’s trial counsel as a witness and he was
questioned by both parties.At the end
of his testimony, the court asked trial counsel:

Do I understand your responses correctly to be that
those topics that you were asked about by [Nicole], and really, by [Michael] as
well, that you had discussed each of those issues, that is, the issue of …
being an unfit parent, the issue of the shift to then focus at a dispositional
hearing to the best interests of the child, and the issue with respect to … the
potential for having all of his rights extinguished at the dispositional phase,
is it your testimony that you believe you had discussed all of those topics
with him, whether at the time you physically filled out the form or at some
other time?

Michael’s trial counsel testified
affirmatively.

¶11The court denied Michael’s postdisposition motion, finding “there
is more than ample evidence that is clear and convincing in nature which
establishes that the position taken by Michael was … always voluntary [and] knowing ....”The court found Michael’s testimony from the
plea hearing combined with the plea form and his trial counsel’s postdisposition
testimony established Michael’s admission was knowing, voluntary, and
intelligent.The court reasoned that to
find Michael’s admission was not knowing, voluntary or intelligent, it would
have to reject all the representations of understanding Michael made at the
plea hearing, the initialed and signed plea form, and Michael’s trial counsel’s
postdisposition testimony that “he explained these concepts to [Michael].”Michael appeals.

DISCUSSION

¶12If a parent wishes to admit to grounds for termination, the
“circuit court must engage the parent in a colloquy to ensure that the plea is
knowing, voluntary and intelligent.”Brown
Cnty. DHS v. Brenda B., 2011 WI 6, ¶36, 331 Wis. 2d 310, 795 N.W.2d
730. “This colloquy is governed by the
requirements of Wis. Stat.
§ 48.422(7) and notions of due process.”[3]Id.The
parent must “understand that the power of the State may be employed to
permanently extinguish any legal recognition of the rights and obligations
existing between parent and child.”Id.,
¶41.

It is likewise essential for parents to understand that
they are agreeing to waive the protections which safeguard parental rights from
permanent extinguishment by the State.The parent must be informed that there are a number of procedural trial
rights put in place to prevent parental rights from being terminated without
cause, … and that these rights are waived with the court’s acceptance of the
plea.

It is important that the parent understand that by
pleading no contest to a ground for termination, the parent is waiving the
right to make the petitioner prove unfitness by clear and convincing evidence,
and that acceptance of the plea will result in a finding that the parent is
unfit….

Finally, the parent must be informed that by pleading
no contest to grounds for termination, the parent has waived a fact-finding
hearing during the phase of the proceedings in which the parent’s rights
receive the utmost protection under the Constitution.Should a parent wish to contest termination
after he or she is found to be unfit, that parent is left with the sole issue
of whether termination of parental rights is in the best interests of the
child.Once the parent is found to be
unfit, it is the court’s determination about what is best for the child rather
than any concern about protecting the parent’s right that drives the outcome.

Id., ¶¶42-44 (citations
omitted).

¶13If “a parent alleges a plea was not knowingly and intelligently
made, the Bangert analysis applies.”[4]Oneida Cnty. DSS v. Therese S., 2008
WI App 159, ¶6, 314 Wis. 2d 493, 762 N.W.2d 122.First, “the parent must make a prima facie
showing that the circuit court violated its mandatory duties and must allege
the parent did not know or understand the information that should have been
provided at the hearing.”Id.If the parent makes a prima facie showing,
the parent is entitled to an evidentiary hearing where “the burden then shifts
to [the petitioner] to demonstrate by clear and convincing evidence that the
parent knowingly and intelligently waived the right to contest the allegations
in the petition.” Id.

¶14Here, because the circuit court held an evidentiary hearing, we
assume without deciding that Michael made a prima facie showing that the plea
colloquy was deficient and that, at the hearing, Nicole had the burden of
proving by clear and convincing evidence that Michael’s admission was knowing,
voluntary, and intelligent.Whether Nicole
established Michael knowingly, voluntarily, and intelligently admitted that grounds
existed to terminate his parental rights raises a question of constitutional
fact.See State v. Bangert,
131 Wis. 2d 246, 283, 389 N.W.2d 12 (1986).We review constitutional questions independent of the circuit court. Id.But “[w]e will uphold the circuit court’s findings of evidentiary or
historical facts unless the findings are ‘contrary to the great weight and
clear preponderance of the evidence.’”Kenosha
Cnty. DHS v. Jodie W., 2006 WI 93, ¶28, 293 Wis. 2d 530, 716 N.W.2d 845
(quoting Bangert, 131 Wis. 2d at 283-84).

¶15Michael argues he is entitled to withdraw his admission because
the circuit court record does not establish he understood three concepts.First, he asserts he did not understand “the full
meaning and significance of being found to be an unfit parent”—specifically, that
the court could only terminate his parental rights if it made an unfitness
determination.Second, he contends he
did not know the sole focus of the “dispositional hearing would be Bane’s best
interests, without any concern whatsoever for his own interests in retaining
parental rights.”Third, he argues he
did not understand that, at the dispositional hearing, the circuit court could
“permanently extinguish any legal recognition of each and every single
conceivable parental right … between him and his son Bane.”

¶16We conclude Michael is
not entitled to withdraw his admission because Nicole met her burden of proving
he knowingly, voluntarily, and intelligently admitted to the abandonment
ground.First, the plea form established
that Michael knew that, upon his admission, the court was going to find him
unfit, a dispositional hearing would occur, and the judge at the dispositional
hearing would determine whether it was in Bane’s best interest to terminate Michael’s
parental rights.Michael also knew that
his parental rights “may or may not” be terminated at the dispositional hearing.At the plea hearing, Michael testified that he
understood everything in the form, that he understood the focus of the next
hearing would “shift from [him] to Bane,” and that he knew the purpose of the
hearing would be “to decide if it’s in Bane’s best interest that [Michael] would
stay his father.”

¶17Further, Michael’s trial counsel represented to the court at
the plea hearing that he had three or four conversations with Michael about his
admission and believed Michael understood the implications.Then, at the postdisposition hearing, trial
counsel testified that he discussed with Michael the concepts of unfitness,
best interests of the child, and parental rights termination.The circuit court was free to accept counsel’s
testimony and did in fact rely on it when determining Michael knowingly,
voluntarily, and intelligently entered his admission.See State v. Peppertree Resort Villas, Inc.,
2002 WI App 207, ¶19, 257 Wis. 2d 421, 651 N.W.2d 345 (“When the circuit court
acts as the finder of fact, it is the ultimate arbiter of the credibility of
the witnesses and the weight to be given to each witness’s testimony.”).The court was also free to reject Michael’s purported
lack of understanding, finding it “self-serving” and contrary to the other
evidence.See id.

By the Court.—Orders affirmed.

This
opinion will not be published.See Wis.
Stat. Rule 809.23(1)(b)4.

[1]This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2).All references to the Wisconsin Statutes are
to the 2009-10 version unless otherwise noted.

[2] The
record is unclear as to the disposition of the
failure-to-assume-parental-responsibility ground.In any event, an admission to a single
ground, e.g., abandonment, establishes there are grounds to terminate a
parent’s parental rights.See Wis.
Stat. § 48.415.

Before accepting an admission of the alleged facts
in a petition, the court shall:

(a) Address the parties present and
determine that the admission is made voluntarily with understanding of the
nature of the acts alleged in the petition and the potential dispositions.

(b) Establish whether any promises or
threats were made to elicit an admission and alert all unrepresented parties to
the possibility that a lawyer may discover defenses or mitigating circumstances
which would not be apparent to them.

(bm) Establish whether a proposed
adoptive parent of the child has been identified….

(br) Establish whether any person has
coerced a birth parent or any alleged or presumed father of the child in violation
of s. 48.63(3)(b)5….

(c) Make such inquiries as satisfactorily
establish that there is a factual basis for the admission.